A Waukesha attorney publicly reprimanded for deleting potential evidence when representing an aide to Scott Walker during the first John Doe investigation is now asking the Wisconsin Supreme Court to change the rule that he violated.
Christopher Wiesmueller, who runs The Wiesmueller Law Firm with his wife, Corrine, filed a rule change petition Nov. 12. He is asking the court to change Supreme Court rule 20:3.4(a), which states that “a lawyer shall not … unlawfully obstruct another party’s access to evidence; or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” It also states that “a lawyer shall not counsel or assist another person to do any such act.”
The attorney wants the court to add the words “unlawfully” into the rule and to add the phrase “unless through legal process.”
“As it currently reads, a reasonable attorney could turn to state and federal statutes and determine a destruction, concealment, or alteration could be permissible, under the rule, if no other law is offended,” Wiesmueller’s request states. “An attorney could consider destruction or concealment of potential evidence permissible if there is a lack of a then-existing discovery request, subpoena, preservation order, public records request, or search warrant. This is especially true where a civil liability issue or misdemeanor may be involved, as Wisconsin only has a statute barring destruction of evidence that aides a felon.”
The court has not yet taken up the petition, but will likely address it at a future administrative conference.
In the petition, Wiesmueller links to his November 2013 public reprimand for violating the rule, as well as others, when representing Darlene Wink, an aide to Walker when he was the Milwaukee County executive. Wink, as well as several of Walker’s staffers, were accused of doing political fundraising work while being paid to do her work for the county.
When the charges came to light, Wiesmueller offered to represent Wink for free. The attorney advised Wink to remove all evidence related to political activity from her computer. He then took the computer and cleared it himself, according to the reprimand.
Later, when discussing the case with prosecutors, the pair allegedly lied and said Wink deleted the files, according to the reprimand. Wiesmueller admitted that he had saved the files on a USB drive, though. That statement led prosecutors to obtain a search warrant for his law office, according to the reprimand.
After the search warrant was executed, Wiesmueller withdrew as Wink’s attorney. She and her new attorney met with prosecutors and agreed to provide information about Wiesmueller in exchange for being charged with misdemeanors instead of a felony. She pleaded guilty to two misdemeanor counts of political solicitation by a public employee and was sentenced to probation, according to the reprimand.
When the case got to Waukesha County District Attorney Brad Schimel’s office, though, Schimel agreed to forgo charges if Wiesmueller disclosed everything to the Office of Lawyer Regulation. Wiesmueller agreed to the public reprimand.
In his petition, Wiesmueller implies that he may not have gotten in trouble if the rule was written differently.
“I certainly wish the rule had been written in 2010 as the OLR interpreted it in 2013,” he wrote. “As it stands, the words “unlawfully” are misleading in that it is contrary to OLR’s apparent interpretation.”
In an email attributed to him, Wiesmueller said he did not have much to add other than what’s in the petition’s memorandum. The email attributed to him states, though, that under the current law, “you can arguably destroy anything related to a misdemeanor or civil case, that doesn’t have a subpoena, discovery request, public records request, preservation order, or search warrant for it yet.”
OLR Director Keith Sellen said discipline cases where attorneys violate 20:3.4(a) come up regularly, but that it’s not a very high percentage. He said he would expect his office and the Board of Administrative Oversight to weigh in on the petition once the Supreme Court takes up the case.
This is not the only John Doe-related case in which Wiesmueller is involved. He filed a lawsuit this month against reserve Judge Neal Nettesheim, who oversaw the probe, claiming Nettesheim violated the Constitution by not being a “detached and neutral magistrate” when he issued the warrant to search Wiesmueller’s office.
That case is pending in federal court.Follow @eheisigWLJ